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Siware v Sakura Marine Products Ltd [2013] PGSC 43; SC1285 (24 May 2013)

SC1285

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 132 OF 2012

BETWEEN:

PATRICIA SIWARE trading as PHILO MARINE
Appellant

AND:

SAKURA MARINE PRODUCTS LIMITED
Respondent

Waigani: Kassman, J
2013: 15 & 24 May

SUPREME COURT – practice and procedure – application for stay – principles applicable for grant of application for stay – consideration of – application does not meet criteria for grant of stay order – application for stay refused

Cases Cited:

McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 SC646

Legislation Cited:

Sections 19, 5(1)(b) & 14(1)(b) Supreme Court Act
Order 1 Rule 7 Supreme Court Rules 2012

Counsel

Buri Ovia, for the Appellant
John Sirigoi, for the Respondent

DECISION

24th May, 2013

1. KASSMAN J: Patricia Siware trading as Philo Marine ("Siware") filed an appeal from the judgment of the National Court in proceedings WS No. 202 of 2009 delivered on 27 September 2012 in which, after assessment of damages, Siware was ordered to pay Sakura Marine Products Limited ("Sakura") the sum of K504,395.66 plus interest and costs.
   
2. A year before that on 10 June 2011, the National Court struck out Siware's defence on the basis of Siware's failure to provide discovery and judgment was entered for damages to be assessed. The trial on assessment of damages was contested with counsel appearing for both parties.
   
3. In these proceedings, Siware has yet to file and serve a Draft Index to the Appeal Book.
   
4. Pending the determination of the Appeal, Siware now moves for a stay of the Orders of the National Court of 27 September 2012. Sakura has filed a Garnishee Notice in the National Court which is returnable on a date to be set. In support of the Application for stay, Siware relies on the Affidavit of her lawyer Buri Ovia filed 10 April 2013 and her own Affidavit of 10 May 2013. Sakura has not filed any Affidavit but it opposes the application.
   

Application for stay – principles applicable

5. The application for stay is made pursuant to Section 19 of the Supreme Court Act which provides "Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings."
   
6. Section 5(1)(b) provides "an interim order to prevent prejudice to the claims of the parties may be made by a judge." Order 1 Rule 7 of the Supreme Court Rules 2012 states "Judge" "means a judge of the Supreme Court of Justice".
   
7. The leading judgment of the Supreme Court in McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 SC646 sets out the considerations to be applied in the Court's exercise of discretion on an application for stay. I will now apply the criteria to the facts and circumstances of this matter.
   
   1. Start with the principal premise that the judgement creditor is entitled to the benefits of the judgment - Apart from arguing there were strong grounds of appeal, there was no suggestion that this principle should not apply.
      
   2. Whether leave to appeal is required and whether it has been obtained – Siware argues this is an appeal on a question of mixed fact and law and leave is not required as provided by Section 14(1)(b) of the Supreme Court Rules. This was not disputed by Sakura.
      
   100. Whether there has been any delay in making the application – the decision appealed was made on 27 September 2012. Notice of Appeal was filed on 5 November 2012. This application for stay was filed on 10 April 2013. The relevant period is calculated from the date of the decision appealed to the date of filing of the application for stay. In this matter, that period was 195 days or six months and fourteen days. That is a long delay. Siware says her lawyer Mr Ovia was with Kundu Legal Services when he had the carriage of the matter on her behalf in the National Court and when the notice of appeal was filed. Mr Ovia then left that firm for Ketan Lawyers on 25 March 2013. Siware says she transferred instructions to Ketan Lawyers on 6 April 2013. She filed her application for stay after being served with the garnishee notice. I find Siware took steps to stay the order of the National Court only after she was faced with steps by Sakura after 26 March 2013 to enforce the judgment of the court. After filing her appeal, Siware sat and did nothing for five months. No acceptable explanation is provided for this.
        
   4. Possible hardship, inconvenience or prejudice to either party – Sakura is entitled to the fruits of the judgment obtained just under eight months ago. Sakura can also argue it's claim accrued in about February 2009 and as such it has been out of pocket for over four years. Against this, Siware may argue should this appeal fail, Sakura can claim interest which is continuing to mount as ordered by the National Court. As it stands, and subject to the assessment of the prospects of the appeal, Sakura continues to face greater hardship and inconvenience.
      
   5. The nature of the judgment sought to be stayed – the judgement of the court was a final judgment and not an interlocutory ruling.
      
   6. The financial ability of the applicant – there is no evidence from Siware that can be considered in assessing the financial ability of Siware. All she says is enforcement proceedings are being taken by Sakura, she has filed an appeal and the status quo should be maintained pending determination of the appeal. In oral submissions, Siware's lawyer said from the bar table his client was a small business operator in marine products in Daru in the Western Province. I have not been assisted at all on this point.
      
   7. Preliminary assessment about whether the applicant has an arguable case on the proposed appeal – As stated above, on 10 June 2011 the National Court struck out Siware's defence on the basis of Siware's failure to provide discovery and judgment was entered for damages to be assessed. There has been no appeal filed from the judgment on liability. The trial on assessment of damages took place a year later on 18 June 2012. That hearing on the assessment of damages was contested with counsel appearing for both parties so presumably all the evidence was fully tested and submissions made by all parties. Siware's allegations of forgery were refused for being raised late and without serious foundation. Further, liability had already been determined. I make these observations from the written judgment of the National Court. There are four grounds of appeal. The first ground is that the court erred in accepting evidence of a certain sum being owed when that amount was being paid off. There is no actual error identified. The second ground alleges error in failing to give weight to her evidence of forgery. This ground is not made out in any serious manner. If this was a serious issue, the forgery should have been brought to the attention of the police for investigation and the proceedings stayed pending the outcome of such investigation or any prosecution arising. Further, liability was determined and there has been no appeal from that determination. The third ground alleges error in failing to accept a document in evidence in support of the defence. That is a matter that was before the trial judge. Siware has not identified where and how the trial judge erred. This is a generalised assertion. The fourth ground is no better as it just asserts there were "serious doubts" as to the amounts of money owed. Siware does not state how and why there are such serious doubts. Again this is a generalised assertion and it is arguable there is no logically articulated foundation for this and all grounds in this appeal.
      
   8. Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure – Siware does not say there is apparent error of law or procedure and in my perusal of the judgment of the National Court and all material filed, there is nothing to suggest otherwise.
      
   9. The overall interest of justice – Following my preliminary assessment about whether the applicant has an arguable case on the proposed appeal, I cannot say the interests of justice are best served by a stay of the judgment of the National Court. This was not a case where there was a complete denial of liability. Further, there was no evidence of any proposal to settle some or all of the judgment debt even in part payments over a period of time.
      
   10. Balance of convenience - Following my preliminary assessment whether the applicant has an arguable case on the appeal, I cannot say the balance of convenience is best served by a stay of the judgment of the National Court.
       
   11. Whether damages would be sufficient remedy – in this case, the National Court has granted Sakura interest on the judgment debt.
       
8. On the basis of my assessment made above, I refuse the application to stay.
   
9. The formal Orders of the Court are:
   
   1. The Appellant's application for stay is refused.
      
   2. The Appellant shall pay the Respondent's costs of this application, to be taxed if not agreed.
      

Judgment accordingly:
_________________________________________________
Ketan Lawyers: Lawyers for the Appellant
Sirigoi Lawyers: Lawyers for the Respondent